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Spain suspends judicial reform plan that upset Brussels

Spain's government on Thursday froze its proposed controversial reform of a top legal body that critics including Brussels had warned could undermine the judicial system's independence.

Published: 23 October 2020 12:25 CEST

Spain suspends judicial reform plan that upset Brussels

File image of Spain's Supreme Court. Photo: AFP

The reform would have changed the way appointments are made to the General Council of the Judiciary (CGPJ) which is responsible for naming judges and ensuring the independence of both courts and judges.

“We are going to stop the clock on the reform of the CGPJ in order to reach an agreement with you,” Spanish Prime Minister Pedro Sanchez said in parliament, addressing the right-wing opposition Popular Party (PP).

He did not specify how long that freeze would last.

Known as Spain's legal watchdog, the CGPJ has 20 members — 12 judges or magistrates and eight lawyers or other jurists — elected by both chambers of the Cortes (parliament).

The reform would have affected the appointment of the 12 judges.

The council's mandate expired in December 2018 but Sanchez has been unable to push through the appointments for lack of parliamentary support, notably from the PP.

Since then, it has been operating on an interim basis, prompting criticism from the European Union.

'Strong institutions' needed

Under the current legislation, the judges have been appointed by a three-fifths majority vote — which requires backing from the PP — but the judicial reform would have changed that to an absolute majority.

It was proposed by Sanchez's leftwing coalition as a way of circumventing the need for the PP's support.

Having the appointments approved by an absolute majority could allow the coalition to bypass the PP and chose judges of a certain ideological persuasion, whereas under the current system, all parties are compelled to compromise.

Alarm bells began ringing at the end of September when the European Commission singled out Spain in its report on the rule of law for not renewing CGPJ membership as it should have done two years ago.

And it stressed the importance of ensuring that the council “is not perceived as being vulnerable to politicisation”, in a clear nod to the necessary separation of executive and judicial powers.

Speaking to parliament on Thursday, Sanchez said his government would once again seek a compromise with the PP.

“First and foremost, we need strong, legitimate institutions, so I am appealing to the entire House and particularly the party which has been blocking the renewal of these constitutional institutions,” he said in remarks directed at PP leader Pablo Casado.

The current impasse is just one aspect of a bitter standoff between the Socialists and their hard-left coalition ally Podemos, and the PP, which started with the government's handling of the coronavirus pandemic.

The proposed reform had also sparked concern in part of the judiciary.

Brussels watching carefully

European Commission spokesman Christian Wigand told AFP Brussels was following the developments in Spain “closely”.

“Member states must follow EU standards to ensure that judicial independence is not compromised,” he said.

The European Association of Judges (EAJ) had also expressed “great concern” Spain was taking a step backwards with respect to the basic requirements for ensuring judicial independence.

Pushing through with the reform, it warned, would “increase the risk of undue political influence in the appointment of the members of the Judicial Council, damaging the perception of the society of an effective judicial
independence”.

For Sanchez's government, the worry was that Spain could find itself compared to Hungary and Poland, which have been criticised by Brussels for trying to exert control over the judiciary.

But experts said Madrid should not be put in the same category as Warsaw or Budapest.

“Spain isn't Poland or Hungary,” said Pablo Castillo, an expert in law and political science at Sheffield University in northern England.

Sanchez's proposal “is not going to lead to a collapse of the rule of law in Spain, although it's hardly supporting the independence of the judiciary,” he told AFP, while admitting the proposal “does echo things that have happened in these two countries”.

“The question of judicial independence is not black or white, it's a question of nuance.”

By AFP's Marie Giffard

ANALYSIS: How Spain's judicial reform plan is raising a red flag in Brussels

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Why regional elections in Catalonia matter to Spain's future

Sunday May 12th will see regional elections in Catalonia at a time when political uncertainty and unpredictability reigns not only in the northern region but across the country. As such, the results could, and likely will, have political ramifications at the national level, perhaps even on the stability of the government itself.

If you follow Spanish politics, you’ll have probably noticed that there’s been quite a lot going on recently. And even if you aren’t a semi-obsessive politico, Spanish politics has been so melodramatic, so unpredictable and (at times) so ridiculous, that in recent months it’s been hard to ignore.

In short: Socialist (PSOE) Prime Minister Pedro Sánchez made a pact with Catalan separatist parties to stay in power after last summer’s general election. Part of this was an amnesty law that granted a legal amnesty to people involved in the failed 2017 referendum independence bid, but it caused outrage across many parts of the country and led to weeks of protests, some of which were violent.

Though Sánchez faced a lot of public ire, Carles Puigdemont, the former President of Catalonia who is a fugitive from Spanish law, takes the brunt of the hatred, particularly from the Spanish right and far-right. Puigdemont is running again in the regional election on May 12th, and has already stated that he will leave politics if he isn’t re-elected.

More recently, Sánchez shocked the country by publishing a highly personal letter on Twitter/X, reportedly released without the advice of his advisors or cabinet colleagues, stating that he was taking five days out to consider his future following repeated attacks against his wife over alleged influence peddling. This came right before the Catalan campaign kicked off and essentially brought politics to a standstill and left the country in limbo.

Sánchez then disappeared from public life, shut himself away in his La Moncloa residence and considered his future, leaving the country in the midst of what felt like a telenovela – a soap opera. On Monday he announced he was staying on and attempted to use the decision as a pivot moment to reinvigorate his government, strengthen Spanish democracy, and to make a stand against what Sánchez describes as the far-right ‘mud machine’.

Others view things differently. While Sánchez supporters see the debacle as a brave affront to right-wing harassment and lawfare tactics used against him, critics have described it as farcical, manipulative, and opposition Partido Popular leader Alberto Núñez Feijóo said that Sánchez had “made a fool of himself” and embarrassed Spain on the global scene.

Many view the move as cynical electioneering, and Sánchez does indeed have a well deserved reputation as a somewhat machiavellian political maneuverer.

But how can Sánchez’s five day mini-sabbatical be electioneering if Spain had elections as recently as last summer? Here’s where the upcoming Catalan elections come in again.

Why regional elections in Catalonia matter to Spain’s future

In short: the results of the Catalan elections have the potential to disrupt the delicate power balance in Madrid.

Some context: in the Catalan regional government, pro-independence parties Esquerra Republicana de Catalunya (ERC), Junts per Catalunya (Puigdemont’s party) and the smaller Candidatura d’Unitat Popular (CUP) have an absolute majority. This allowed separatist parties, namely ERC and Junts, greater political leverage when negotiating the amnesty with Sánchez and the PSOE last year.

Though some, particularly in Junts, would like the amnesty (which is still yet to be approved in the Senate) to go further, the national government has more or less survived since the summer based on this uneasy truce. Depending on the results in Catalonia on May 12th, we may see just how fragile it really is.

Exiled Catalan separatist leader, MEP and founder of the Junts per Catalunya (Together for Catalonia) party Carles Puigdemont gives a speech during a meeting to present his list for the upcoming regional elections in Catalonia, in Elna, southwestern France. (Photo by Matthieu RONDEL / AFP)

What do the polls say? Most seem to have the PSC (the PSOE’s sister party in Catalonia) making big gains and becoming the biggest party in the Generalitat, with leader Salvador Illa becoming President. According to RTVE’s average of polls, the PSC is on course to win 39 seats, six more than in 2021. Junts is projected to be in second place with 32 seats and would thus overtake ERC, which would get 28, a loss of 5 seats, though some polls put ERC in second and Junts third.

However, no poll gives the PSC an absolute majority of 68 seats needed to govern alone. As such, the PSC, should it win, will require the votes of far-left Comuns-Sumar, but also a coalition arrangement with a pro-independence party, most likely ERC.

However, polling from El Nacional, a Catalan newspaper, estimates that undecided voters still make up a third (33.5 percent) of the Catalan electorate, so there will likely be some variation from polling data to the results on election day.

Interestingly, Sánchez’s five day reflection period seems to have actually boosted PSOE polling numbers overall on a national level. According to a flash poll taken following the letter, the PSOE vote intention surged.

But the move has not proven popular with politicians in Catalonia, particularly among the pro-independence parties Sánchez’s government relies on in Madrid. The current President of the Generalitat and ERC candidate Pere Aragonès accused Sánchez of exploiting the “empathy” of the Spanish public “for an exclusively political purpose”, describing the “five day comedy” as “yet another electoral manoeuvre.”

The ERC has even made a complaint to Spain’s electoral authority about Sánchez’s decision and subsequent interview on Spanish state TV, claiming it could have breached electoral rules by favouring the PSOE candidacy in the Catalan election.

Junts general secretary Jordi Turull, meanwhile, has accused Sánchez of “interfering in the Catalan election.”

Remember, these are the parties that prop up the Sánchez government at the national level.

Protesters hold up a banner reading “Pedro (Sánchez), traitor” and “Spain is not for sale” during an anti-amnesty protest in Madrid. (Photo by Pierre-Philippe MARCOU / AFP)

Potential scenarios

So, it’s safe to say that things are tense in Spanish politics. Sánchez has angered a lot of people with his period of reflection — not only his opponents but also those who prop up his government in Congress. Conversely, the move does seem to have increased PSOE support overall ahead of polling day, and the PSC seems to be on course to win in Catalonia.

With no party likely to win an absolute majority, the Catalan results on May 12th will require coalitions, which could in turn have a ripple effect on alliances in Madrid. This is principally because there is a possibility that ERC or Junts could be left out of the Generalitat, which could remove the incentive for one (or even both, in the unlikely event of a PSC absolute majority) pro-independence parties to keep Sánchez in the Moncloa, or at the very least to demand more from him.

The polls suggest the most likely outcome is the PSC winning the elections but needing the support of ERC. At the national level, this could lead to a split in the separatist movement and would leave Junts’ support in Congress up in the air. Junts could theoretically withdraw its support, topple the government, and trigger further general elections.

Another scenario touted by political pundits is that pro-independence parties could again win an absolute majority between them. This would heap further political pressure on Sánchez, who, after already spending a lot of political capital on the amnesty law, would likely be pressured for further concessions from the Generalitat, namely another referendum but also changes to the amnesty law. Separatist parties would point to their victory, against polling predictions, as a mandate for pushing the pro-independence movement further.

Of course, there’s also the (admittedly unlikely) possibility that Junts per Catalunya win an absolute majority and Puigdemont becomes President of the region, something that would set the scene for his return to Spain and send shockwaves through Spanish politics.

Perhaps there is no better indication of how important this election is than the fact that Sánchez’s first public appearance since his ‘will he, won’t he’ resignation stunt was at the Fería de Barcelona.

Whatever happens in Catalonia on May 12th, two things seem certain: firstly, that people from across the country will be tuning in for the results; and secondly, as the last few years have shown, predictions are essentially useless and anything can happen in Spanish politics.

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